Bloody Video Games May Get Same Age Curbs as Porn

Visitors play Activision Blizzard Inc.'s "World of Warcraft" video game at the Gamescom video games trade fair. Photographer: Ralph Orlowski/Bloomberg

Oct. 27 (Bloomberg) -- The main character in the “Postal
II” video game leaves a trail of gore as he moves about town.
The Postal Dude, as he is known, shoots police officers, beheads
girls with a shovel and sets people on fire.

Along the way, he also might become a symbol of the breadth
of the Constitution’s free-speech protections. The U.S. Supreme
Court on Nov. 2 will consider whether the First Amendment
permits a California law that would bar the sale of “Postal
II” and other violent video games to minors.

The video-game industry is challenging the law, arguing
that even the bloodiest of games are entitled to First Amendment
protection. That argument may resonate at a Supreme Court that
has proven skeptical of government speech regulations.

“Violence is a common aspect of all communicative speech
and media and art forms,” said Kenneth L. Doroshow, general
counsel of the Entertainment Software Association, which
represents the video game industry and sued to block the
California law. “The Bible itself has extremely graphic
portrayals of violence. Violence is just part of the human
condition.”

California says its law, which has never been enforced, is
a way of helping parents shield their children from games the
industry itself has said aren’t appropriate for minors. Governor
Arnold Schwarzenegger and Attorney General Jerry Brown contend
that violent games are akin to sexual materials, which the
government can restrict to protect children. The law wouldn’t
prevent parents from buying the games for their kids.

Parents Decide

“If a parent decides a violent game is OK for a kid,
that’s one thing,” said James Steyer, chief executive officer
of Common Sense Media, a San Francisco-based group that helped
develop the law. “But a kid isn’t able to judge what is
appropriate for them. We want parents to be the decision-makers
on this, not the industry.”

The industry, with $10.5 billion in annual sales, has lined
up dozens of supporters. The Entertainment Merchants
Association, which represents the home entertainment industry,
joined the Entertainment Software Association in pressing the
suit. Their allies include Microsoft Corp., which makes the Xbox
game console; Activision Blizzard Inc., the largest video-game
publisher; and the Motion Picture Association of America.

Those critics say the California law accomplishes little in
light of a voluntary rating system already used by virtually all
game publishers and the largest retailers. The system assigns
one of eight age-specific ratings to games -- with M signifying
mature, or 17 and older, and AO indicating adults only, or 18
and older.

Impact Questioned

Activision Blizzard says in its court filing that the vast
majority of retailers bar the sale of M-rated games to minors
and don’t carry AO-rated games at all.

“It is exceedingly difficult for minors under the age of
17 to buy M-rated video games at the vast majority of game
retailers unless accompanied by an adult,” the Santa Monica,
California, company argued. “And it is virtually impossible for
anyone -- minors or adults -- to buy AO-rated or unrated video
games at brick-and-mortar retailers.”

Nine states, responding to what supporters of the law say
was an intense industry lobbying effort, are also opposing the
law, taking the unusual position of opposing a fellow state and
arguing for restrictions on their authority.

California officials say the rating system confirms that
some games -- including “Postal II” -- aren’t suitable for
children.

“The California legislature sought to reinforce the right
of parents to restrict children’s ability to purchase
offensively violent video games,” Schwarzenegger and Brown
argued in a court filing.

Risk to Children

The American Academy of Pediatrics said last year that
exposure to violence in video games and other media “represents
a significant risk to the health of children and adolescents.”
The California chapter of the group is supporting the state at
the Supreme Court.

Eleven other states are also backing California. Even so,
the fight has taken on a “David and Goliath” atmosphere,
according to Steyer. All told, opponents of the law filed 27
friend-of-the-court briefs, compared with four filed by outside
supporters of the measure.

The California law, meant to take effect in 2006, would
require violent video games sold in the state to be labeled and
would ban their sale or rental to anyone under 18.

The law doesn’t clearly say whether it applies to online
sales. State officials say the language suggests those sales are
covered, though no court has ever decided that issue.

What’s Covered?

Opponents say the law is also unclear as to what videos
would be covered. The measure restricts games that depict
violence against human beings and appeal to “a deviant or
morbid interest of minors,” are “patently offensive” and
“lack serious literary, artistic, political or scientific value
for minors.”

A federal trial judge concluded that the law covered
“Postal II,” developed by Running With Scissors Inc. of
Tucson, Arizona. Judge Ronald Whyte contrasted “Postal II”
with another game, “Full Spectrum Warrior,” which involves
U.S. army squads fighting in an Afghanistan-like urban
environment. Whyte said the latter game “has some political
value” and doesn’t permit killing in an “especially heinous,
cruel or depraved” manner.

A San Francisco-based federal appeals court last year
declared the law unconstitutional, saying the state hadn’t
produced enough evidence that violent games cause physical and
psychological harm to minors.

Courts elsewhere have reached similar conclusions, striking
down laws restricting sales of violent video games enacted by
eight other jurisdictions, including six states.

Animal Cruelty

A ruling favoring California could mark a major shift in
the high court’s reading of the First Amendment. California is
asking the court to extend a 1968 ruling that put sales of
sexually explicit materials to minors outside the ambit of the
First Amendment.

The Supreme Court in its term that concluded in June ruled
8-1 that depictions of animal cruelty were entitled to free-speech protection, rejecting Obama administration contentions
that they should be categorically excluded from the First
Amendment. That case didn’t involve sale of material to minors.

“Maybe there are some categories of speech that have been
historically unprotected but have not yet been specifically
identified or discussed as such in our case law,” Chief Justice
John Roberts wrote for the court. “But if so, there is no
evidence that ‘depictions of animal cruelty’ is among them.”

The case, which the court will resolve by July, is
Schwarzenegger v. Video Software Dealers, 08-1448.